The European Commission launched its proposal for a Copyright Directive in September 2016. The legislation includes new rules on filtering of uploads to the internet, text and data mining and the so-called “link tax”.

In response, on 9 September, the Copyright for Creativity Alliance (including EDRi) sent a letter to European Commission Vice-President Andrus Ansip about the copyright reform that was launched recently under his authority. On 12 October, the Commissioner responded.

In the letter, Ansip said:

One of the main goals of the Commission’s Digital Single Market Strategy is to achieve a wide availability of creative content across the EU.

The proposal suggests to create a power for copyright holders to prevent the upload of ANY content that contains some of their work – which includes the power to block availability of perfectly legal and democratically valuable quotation or parody. This quite obviously does not achieve a wide availability of creative content across the EU.

Worse still, going beyond any surveillance and censorship regime imposed anywhere else in the world, the Commission not alone proposes mass filtering and blocking of uploads to the internet in Europe. It also privatises this activity, putting the hands of bizarre “pluristakeholderism” – like multi-stakeholderism, but without internet users. This means that (big) rightsholders and internet companies will cooperate to decide what filtering is implemented and how.

In the letter, Ansip said:

We acknowledge the positive effects of the limited liability regime established in the e-commerce Directive on innovative online services.

Under existing EU law (in the e-commerce Directive), internet companies are protected from liability for illegal or unauthorised activity of their customers. This is crucial to minimise incentives to monitor and censor internet users and to allow innovation to flourish. What he did in his proposal was to kill the limited liability regime in a kind of legislative “drive-by shooting”. It moves virtually all internet hosting providers outside the scope of the e-commerce Directive by saying that availability to the public is not a passive activity (as recognised by the e-commerce Directive and the Court of Justice of the EU). It does this with just one word – “thereby”:

“Where information society service providers store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyond the mere provision of physical facilities.”

Having already killed the e-commerce Directive, it then drives a stake through its heart by saying that providing such a service is “performing an act of communication to the public”. This means that not alone is the pre-existing protection from liability removed, the hosting company becomes directly liable for any infringements carried out by its customers.

In the letter Ansip said:

Our goal is not to change this regime and not diminish innovation and user choice.

What he did in his proposal was to create a right of appeal for unfair deletion or blocking of user content. This is not a bad thing and this makes it clear that the Commission itself sees a risk of the legislation diminishing user choice. However, we know from experience that online companies rarely remove user content because it is “illegal”. They remove it because it is an alleged breach of their terms and conditions. There is no mechanism in EU or national law to force internet companies to host material they have decided was in breach of their terms of service. As a result, the “safeguard” that is proposed by the Commission will not be usable in practice. The Commission has recognised that it has created a problem and failed to deliver a solution.

Worryingly, the analysis in Commissioner Ansip’s letter is not just wrong. It is demonstrably, obviously and egregiously wrong.